As 2018 comes to an end, we are happy to present our traditional End of Year Plan Sponsor “To Do” Lists. This year, we are publishing our “To Do” Lists in four separate Employee Benefits Updates. Part 1 covered year-end health and welfare plan issues, Part 2 covered annual cost-of-living increases, Part 3 covered qualified plan issues, and this Part 4 covers executive compensation issues. Each Employee Benefits Update provides a “To Do” List of items to consider taking action on before the end of 2018 or in early 2019. As always, we appreciate your relationship with Snell & Wilmer and hope that these “To Do” Lists can help focus your efforts over the next few months.

Part 4 - Executive Compensation “To Do” List

• Last Chance to Correct Certain Section 409A Document Failures Discovered in 2018: Although not specifically addressed in the Section 409A regulations, some commentators believe that Section 409A document failures can be corrected in years in which the deferred amounts are not yet vested or for which the substantial risk of forfeiture (or contingency upon which the compensation is paid) has not yet occurred. Accordingly, Section 409A document failures discovered in 2018 may be corrected prior to December 31, 2018 without taxes and penalties if the deferred compensation amounts remain unvested through December 31, 2018. To take advantage of this correction opportunity, among other requirements, the amounts in question must remain unvested for the balance of 2018 and the correction must occur prior to the date the compensation vests. Plan sponsors may wish to correct unvested amounts in accordance with the procedure set forth in Section VII of the proposed clarifications to the Section 409A Regulations, which were issued on June 22, 2016. Although these proposed regulations are not final, the preamble to the proposed regulations provides that plan sponsors may rely on the proposed regulations before the IRS releases final clarifying regulations.
• Nonqualified Deferred Compensation Deferral Elections Should be Made on or Before December 31, 2018: Section 409A generally requires that compensation deferrals under a nonqualified deferred compensation plan be made before the year in which the underlying services are performed. There are some exceptions to this general rule, but employers should be mindful that Section 409A imposes strict requirements on the timing of compensation deferral elections and that most deferrals of compensation to be earned in 2019 must be made on or before December 31, 2018.
• Take Certain Action to Address Impact of Tax Cuts and Jobs Act on Section 162(m) of the Code: As explained in more detail in our SW Benefits Updates of March 9, 2018 and September 6, 2018, "Tax Cuts and Jobs Act: Implications for Public Company Executive Compensation Programs" and "The IRS’ Initial 162(m) Transition Guidance is Finally Here," the Tax Cuts and Jobs Act expanded the definition of “covered employee” and eliminated the performance-based compensation exception to Section 162(m) of the Code for tax years beginning after December 31, 2017, subject to a transition rule for written binding contracts in effect as of November 2, 2017 that are not materially modified thereafter. Based on the IRS guidance that has been released to date, public companies may wish to use the remainder of 2018 and the first part of 2019 as an opportunity: (i) to identify the written binding contracts that may be eligible for transition relief to prevent unintentional modifications that may take such arrangements outside of the transition relief; (ii) to build a list of “covered employees” that takes into account the changes made by the Tax Cuts and Jobs Act; and (iii) for those that are adopting or amending equity-based compensation plans in 2019, to consider removing provisions that were solely designed to facilitate compliance with the performance-based compensation exception.
• Review Whether Your Equity-Based Compensation Plan Has Sufficient Shares Remaining for 2019 Awards: Employers should review share pool information to determine whether the equity plan has a sufficient number of shares available for upcoming awards. If additional shares are needed, employers should submit the increase for shareholder approval at the 2019 annual meeting.
• Review Director Pay Practices and Consider Separate Annual Limits on Director Equity Awards: In light of the Delaware Supreme Court’s decision In re: Investors Bancorp, Inc. Stockholder Litigation, the settlement of Solak v. Barrett, and the increased scrutiny from Institutional Shareholder Services Inc. (“ISS”) on director compensation, public company employers may wish to use the remainder of 2018 and the first part of 2019 as an opportunity to revisit their processes for establishing director compensation. Public company employers that are adopting or amending equity-based compensation plans in 2019 might consider adopting formula plans, adding separate, meaningful annual limit on director equity awards, and/or enhancing the disclosures and the rationale and process underlying their director compensation programs. More on the Solak settlement and ISS’ position on director compensation can be found in our SW Benefits Blogs, "Settlement of Solak v. Barrett May Provide Additional Guidance on Setting Director Pay" and "Yet Another Reason to Focus on Director Pay," although we do note that very recently ISS issued a preliminary FAQ announcing a delay in the ISS policy related to excessive non-employee director compensation and that the first adverse recommendations under the policy will not come until 2020 (instead of 2019).
• Code Section 6039 Information Statements Due by January 31, 2019: Section 6039 of the Code requires companies to file a return and provide a written information statement to each employee or former employee regarding: (1) the transfer of stock pursuant to the exercise of an Incentive Stock Option (“ISO”); and (2) the transfer by the employee or former employee of stock purchased at a discount under an Employee Stock Purchase Plan (“ESPP”). For ISO grants and ESPP transfers occurring in 2018, Section 6039 information statements must be provided no later than January 31, 2019.